Citation Nr: 0505721
Decision Date: 03/02/05 Archive Date: 03/15/05
DOCKET NO. 02-11 150 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to increased evaluation for arthritis of the
left knee, currently evaluated as 10 percent disabling.
2. Entitlement to increased evaluation for instability of
the left knee, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Contreras, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1983 to
January 1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2001 decision by the
Department of Veterans' Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina.
The veteran testified at a videoconference hearing before the
undersigned Veterans Law Judge in January 2005.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In January 1999, the RO granted the veteran service
connection for patellofemoral arthritis of the left knee, at
a 10 percent rating. In March 2001, the RO continued the
veteran's 10 percent rating under Diagnostic Code 5010 for
left knee arthritis, and granted a 10 percent rating for left
knee instability under Diagnostic Code 5257. This decision
was based on a precedent opinion of the VA General Counsel,
VAOPGCPREC 23-97 (7/1/97), which held that a claimant who has
arthritis and instability of the knee may be rated separately
under Diagnostic Codes 5003 and 5257, citing Esteban v.
Brown, 6 Vet. App. 259 (1994).
The veteran was last examined for rating purposes by a VA
examination in December 2001. During the January 2005
videoconference hearing before the undersigned Veterans Law
Judge hearing, the veteran indicated that he was treated at
the VAMC Durham for his left knee disability and the
representative requested that these records be obtained. The
Board concurs. The Board also finds that a contemporaneous
VA examination is warranted in this case. .
Accordingly, this claim is REMANDED for the following
actions:
1. The RO is request the VA medical
facility in Durham, North Carolina to
furnish copies of any additional medical
records pertaining to treatment for the
left knee disorder covering the period
from June 26, 2004 to the present. .
2. The RO should make arrangements with
the appropriate VA medical facility for
the veteran to be examined by an
orthopedist to evaluate the severity of
the veteran's service-connected left
knee disability. The claims folder
should be made available to the examiner
for review in conjunction with the
examination.
In addition to x-ray studies, any other
specialized tests deemed necessary
should be performed. It is requested
that the orthopedist include range of
motion testing. The examiner should
indicate whether the instability and/or
subluxation is slight, moderate, or
severe. Additionally, the orthopedist
is requested to determine whether the
left knee disability results in weakened
movement, excess fatigability, or
incoordination, and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss or favorable or
unfavorable ankylosis. The examiner
should also express an opinion on
whether pain could significantly limit
functional ability during flare-ups or
when used repeatedly over a period of
time. DeLuca v. Brown, 8 Vet. App. 202,
205 (1995). The examination should
include a complete rationale for the
opinions expressed.
3. Thereafter, the RO should
readjudicate the issue on appeal. If
the determination remains unfavorable to
the veteran, he should be provided with
a supplemental statement of the case
(SSOC) and an opportunity to respond.
Thereafter, the case should be returned
to the Board for further appellate
consideration
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).